Citation Nr: 1115304
Decision Date: 04/19/11 Archive Date: 05/04/11
DOCKET NO. 06-13 298 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss disability.
2. Entitlement to service connection for a disability manifested by vertigo and nausea, claimed as due to radiation exposure.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
K. R. Fletcher, Counsel
INTRODUCTION
The Veteran served on active duty from September 1954 to October 1957.
This case was originally before the Board of Veterans' Appeals (Board) on appeal from July 2005 and June 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously adjudicated by the Board in a decision dated in December 2008. In that decision, the Board denied service connection for bilateral hearing loss disability and a disability manifested by vertigo and nausea. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2010, the Court issued a memorandum decision that vacated the December 2008 Board decision and remanded the case to the Board for action in compliance with the instructions in the memorandum decision.
The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
The issue of entitlement to service connection for a disability manifested by vertigo and nausea, claimed as due to radiation exposure, is addressed in the REMAND that follows the ORDER section of this decision.
FINDING OF FACT
A hearing loss disability of either ear was not present in service and no current hearing loss disability is etiologically related to service.
CONCLUSION OF LAW
Bilateral hearing loss disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303, 3.385 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.
The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).
The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The record reflects that prior to the initial adjudication of the claim decided herein, the Veteran was mailed letters in July 2005 and March 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The March 2006 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim.
Regarding the duty to assist, the Veteran's service treatment records (STRs) and service personnel records are associated with his claims file, and pertinent, available post-service treatment records (including Social Security Administration records) have been secured. The Veteran has not identified any other pertinent evidence that remains outstanding. The Board also notes that the Veteran has been afforded an appropriate VA examination in response to his hearing loss disability claim.
Legal Criteria
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131.
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b).
For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Factual Background and Analysis
The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decisions, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.
The Veteran contends that he developed bilateral hearing loss as a result of noise exposure incurred while serving as a meteorologist in the Navy. Service personnel records note that the Veteran served in the Navy from September 1954 to October 1957; his occupational specialty was weather observer.
The Veteran's STRs are negative for complaints or findings related to hearing loss disability. An October 1957 separation examination report notes findings of 15/15 bilaterally for the whisper voice and spoken voice tests.
While the Veteran filed claims for VA benefits in June 2003 and October 2004, he did not mention problems with his hearing in either claim.
In July 2005, the Veteran submitted a claim for service connection for hearing loss disability.
An August 2005 private medical record signed by an otolaryngologist and an audiologist notes that the Veteran reported progressive hearing loss. He reported no known family history of hearing loss, no exposure to recreational noise and no post-service noise exposure at work. Examination revealed bilateral "moderate sensory-neural hearing loss." In addition, they opined that the Veteran's hearing loss was more likely than not due to excessive turbine and balloon noise exposure in service.
A February 2006 VA examination report notes the Veteran's complaints of progressive hearing loss over the past 49 years and his history as a meteorologist in the Navy. The VA examiner also noted that the Veteran had no significant post-service noise exposure. Examination revealed findings of bilateral mild to moderate sensorineural hearing loss. Following a review of the claims file in March 2006, the VA examiner opined that the Veteran's hearing loss was not incurred on active duty, and that the hearing loss has occurred subsequent to separation from service. The examiner noted that the Veteran's STRs, including the separation examination report, were negative for complaints or findings of hearing loss. The examiner further opined that hearing loss caused by acoustic trauma occurs at the time of exposure and not many years later. He stated, "The most likely etiology . . . is presbycusis, as the veteran's current audiometric thresholds are very compatible with his current age." Accordingly, the examiner arrived at the conclusion that it is less likely than not that current hearing loss is related to the Veteran's duties in service.
Upon review of the evidence, the Board finds that service connection is not warranted for bilateral hearing loss disability.
The medical evidence of record shows that the Veteran has hearing loss disability. However, as noted above, despite the Veteran's contentions that this disability began in service, an October 1957 separation examination disclosed normal hearing. The first evidence of hearing loss disability is an August 2005 private treatment record. This interval of time between service separation and the earliest documentation of the disability is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).
The Board has considered the Veteran's own statements to the effect that he currently has hearing loss that was incurred during his naval service. He is competent to report observable symptoms, and thus such statements could potentially show continuity of symptoms such as to enable a grant of service connection. However, his statements as to continuity are not deemed credible here. Again, his STRs, including his separation examination report, are negative for findings of hearing loss. Moreover, he did not raise a claim referable to his claimed disability until 2005, decades after discharge. If he had been experiencing continuous problems with hearing loss since service, it is reasonable to expect that he would have initiated a claim much sooner. Thus, continuity of symptomatology has not been established by either the clinical record or the Veteran's own statements.
Regarding the etiology of his current hearing loss, the August 2005 private medical opinion supports the Veteran's claim and the March 2006 VA opinion does not. When evaluating these opinions, the Board must analyze the credibility and probative value of the evidence, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert, supra. Greater weight may be placed on one physician's opinion over another's depending on factors such as reasoning employed by the physicians, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994).
Here, the Board finds the August 2005 opinion to be less than persuasive because there is no indication that it is based on a review of the Veteran's complete pertinent history. Specifically, the opinion makes no mention of the Veteran's normal separation physical examination and the absence of pertinent medical findings for nearly 50 years; it may be that the Veteran neglected to provide this information to the examiner.
Conversely, the March 2006 VA opinion is based on a review of the Veteran's entire pertinent medical history, including his STRs and post-service medical evidence as noted above. The examiner provided a detailed explanation of the rationale for the conclusion reached, as noted above. In light of the foregoing, the Board finds the VA opinion the most probative and persuasive evidence in this matter.
The Veteran himself believes that his hearing loss was caused by noise exposure during his active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.
In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b).
ORDER
Entitlement to service connection for bilateral hearing loss disability is denied.
REMAND
The Veteran also contends that he has chronic vertigo and nausea as a result of his exposure to radiation during his service in Japan, where he handled filters from a centrifuge which gathered gamma rays from the atmosphere. In the Court's December 2010 memorandum decision, it was stated that remand was indicated because the Board did not provide adequate reasons and bases for determining that VA complied with its duty to assist the Veteran since he was not provided with an examination. In this regard, the Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.). In addition, credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation is enough to satisfy the "low threshold" requirement that a disability "may be associated" with service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
In the case at hand, the Veteran's STRs note that he was seen with complaints of nausea and vertigo in June 1957. The Veteran reported that he had experienced similar episodes on two prior occasions-once in the dentist's chair and once after heavy drinking. The diagnosis was anxiety; he was treated with a sedative. Following service, a September 2003 VA outpatient treatment record notes the Veteran's complaints of three to four minute attacks where his head spins, he sweats profusely and he vomits acid. He reported that he had recently been diagnosed with gamma ray exposure by an ENT. In September 2003 and December 2003 statements, the Veteran maintained that he had experienced the symptoms of nausea and vertigo since service, and had sought treatment for these complaints on numerous occasions since service. A February 2006 VA ear disease examination report notes the Veteran's complaints of severe dizzy spells associated with vomiting since service. He reported that he lost weight in service, and then underwent bowel resections in 1987 and 2004. The examiner opined that the Veteran's complaints of nausea and vertigo were related to anxiety and that the Veteran did not have a chronic vestibular disorder.
Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between a disability manifested by nausea and vomiting and the Veteran's naval service is necessary. (With regard to the February 2006 VA examination report, that report is not adequate for adjudication purposes as it does not provide the necessary nexus opinion. Under applicable regulation, "if [an examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2. See also Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); Green v. Derwinski, 1 Vet. App. 121 (1991).)
Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:
1. The Veteran must be afforded a VA examination by a physician with the appropriate expertise to determine the etiology of any disability manifested by nausea and vertigo present during the period of this claim. The Veteran should be properly notified of the examination and of the consequences of his failure to appear. His claims files must be reviewed by the examiner in conjunction with the examination.
Based on review of the pertinent medical history, examination of the Veteran, and with consideration of sound medical principles, the examiner should provide an opinion whether any such disability manifested by nausea and vertigo is, at least as likely as not (a 50 percent or better probability), related to his active service. The examiner must explain the rationale for all opinions expressed. The examiner must acknowledge and discuss the Veteran's lay statements that he has experienced nausea and vertigo since service. All findings and conclusions should be set forth in a legible report.
2. The RO or the AMC should also undertake any other development it determines to be warranted.
3. The RO or the AMC should then re-adjudicate the claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action.
By this remand, the Board intimates no opinion as to any final outcome warranted.
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs